The seduction of a chief justice

The much-anticipated operation was a brilliant success, but the patient died.

Chief Justice John Roberts is a clever surgeon, and he left a bloody mess to prove it. He’s in the Mediterranean now, on the island of Malta, lecturing to European lawyers about how to “grow” in office, basking in the applause of fans of the welfare state.

Some of our most intellectually resplendent pundits and academics are applauding, too. They’re calling him the dancing master of “finesse,” the lord of the “physics of American politics,” the genius of the conservative attempt to move judicial review back to the center.

Chief Justice John Roberts. /AP/Michael Conroy

What they’re not saying is that John Roberts has bequeathed to the rest of us a monstrosity of a health-care system, now embedded in the law, where it will only grow, fester and metastasize. Worst of all, Mr. Justice Roberts has given Congress, and all the Congresses to follow, the unrestrained power to rob, plunder and pillage and call it a “tax.”

The damage is likely to be catastrophic. The voters, we’re confidently told, can fix the damage in November if they elect a new president. That’s an enormous “if,” and absent a George McGovern or Walter Mondale there’s never a slam dunk in presidential politics. Despite his promise to “repeal and replace” as the first act of his presidency, Mitt Romney could have a compliant House but he’s unlikely to inherit a Republican Senate. Without enough congressional allies all the new president can do is shake his fist while Obamacare grows, festers and metastasizes.

Mr. Roberts is said by friends to have wanted most to enhance the “reputation” of the court by avoiding a “partisan” 5 to 4 decision overturning Obamacare. But he would write a passage to restrain Congress from doing bad things in future in the name of the commerce clause. He could have put his restraint of the commerce clause into a decision overturning Obamacare – the four conservatives on the court were eager to do it – but that would have meant no applause from the left. So the rest of us are stuck with Obamacare, the elites console themselves with a moral victory, and Mr. Roberts has established the reputation of the court as a lap dog for every Congress from now on, “moving forward” in cheerful disregard of enumerated powers.

“Justice Roberts’s opinion,” writes John Yoo in the Wall Street Journal, “provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning . . . the mandate is transformed into a constitutional exercise of Congress’s power to tax.”

Mr. Roberts, writes Mr. Yoo, professor of law at the University of California at Berkeley and a Justice Department lawyer in the George W. Bush administration, “may have sacrificed the Constitution’s last remaining limits on federal power for very little – a little peace and quiet from attacks during a presidential election year.”

His friends say that criticism in the newspapers and on television gets easily under his skin, that he has been for so long the golden boy – Harvard Law, top-of-the-line Washington law firm (Hogan and Hartson), a clerkship for a chief justice (William Rehnquist) – that he imagines he was put where he is now to bask, and buff and burnish the reputation of the court all the better to reflect a shine and sheen on his own image.

The formula for ending partisanship in Washington – a city founded as the designated arena of partisanship – is simple: Republican and conservative deferral to the greater wisdom and higher nobility of Democrats and liberals. There’s never a suggestion that Democratic and liberal deferral would accomplish this as well. The president who appointed him to the court, and the conservatives who stood up to the media smear machine to help him win confirmation, quaintly reckoned that he would be less concerned with public relations and image-buffing than concern for the Constitution.

Instead Mr. Roberts, faced with one of the most important decisions of his career, took a walk into the wilderness [Wall Street Journal], or strolled into the land of the sophists [Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito]. The betting here is that, seduced and embraced, he’ll never return.

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